Summary: There is fault in the Council’s policy in relation to elements of the transport support it will provide for students attending post 16 educational establishments. This fault did not affect the complainant’s son but the Council will amend its policy.

The complaint

1. The complainant, whom I shall refer to as Mr G, complains the Council is at fault in that it is charging too much for his contribution towards his son, X’s, transport to school.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

4. I considered the information the complainant provided with the complaint and offered him the opportunity to discuss the complaint with me. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
5. Mr G and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

Back to top

What I found

What should have happened

7. Councils have a duty to publish a transport policy statement for post 16 transport setting out their transport arrangements and the financial help available for learners of sixth form age (16-18 or after 18 if they started the course before their 19th birthday). It must specifically address the arrangements for young people with learning disabilities.
8. They have discretion to set their own arrangements but they must have regard to various factors including:
• the needs of those who could not access education or training if no arrangements were made;
• the need for young people to have reasonable opportunities to choose between courses;
• the distance and journey time of the place of learning from the home;
• the costs to the establishment; and
• preferences based on religion
9. Councils may ask parents for a contribution to transport costs, but should exercise discretion in doing so, and have arrangements to support low income families.
10. The duty relates to young people of sixth form age with learning difficulties and/or disabilities aged up to 19. It may go beyond the age of 19 if the student is continuing on a course started before that age. The transport policy statement must include transport arrangements for this group of students.
11. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
12. The transport needs of young people with special educational needs and disabilities must be reassessed when the young person moves from compulsory schooling to post-16 education, even if they remain at the same educational setting.
13. The Department for Education has produced statutory guidance (the guidance) for Councils on post 16 transport and support. This statutory guidance tells councils that planning of transport for post 16 students should take account of young people now being required to stay in education or training until their 18th birthday.
14. The guidance says that councils must take distance into account when determining eligibility for support with transport stating that young people in rural areas should not be worse off financially because they have to travel further that their peers living in urban areas.
15. In relation to the cost of transport the statutory guidance sets out that councils are expected to target support to those young people who need it most, particularly those on a low income. It says a council’s transport policy should set out the criteria it will use to establish eligibility for transport or financial support. It goes on to say that councils may ask parents or students for a contribution to transport costs and “in exercising their discretion” (my italics) they should ensure that:
• any contribution is affordable; and
• arrangements are in place to support families on a low income.

It confirms that councils can take account of 16-19 bursary funding when assessing a young person’s need for financial help with transport.

16. The government provides a bursary scheme to help students aged 16 to 19 with costs related to education including, for example, clothing, books, food and travel. There is a bursary for children in defined vulnerable groups including, for example, those in local authority care or who have recently left care or children receiving disability benefits. For discretionary bursaries government guidance states that individual schools and colleges administer this and have their own guidance which takes account of individual circumstances and will usually take account of family income.
17. Cornwall Council’s policy on education transport for students age 16 to 19 says that it provides subsidised transport for qualifying students age 16 to 19. The subsidy sum provided is standard at £500 per year for all qualifying pupils regardless of distance or whether they have an EHC Plan and it does not fully fund travel for any students in this age group. In order to be eligible the student must live in Cornwall, meet the age criteria and be attending qualifying education provision. The qualifying provision requirement is that they must attend:
• the nearest or designated learning/training establishment that offers their chosen courses. Where a sixth form is part of a school, the designated school is the one designated by the council based on the home address. Where a school does not have its own sixth form the Council names the sixth form/college that is allocated for that school; and
• live at least three miles from the school/college using the shortest available route except where they have certain disabilities or mobility problems or the route is assessed to be unsafe to walk.
18. The Council says that it will consider paying a mileage allowance where no suitable transport provision is available.
19. The statutory guidance says that councils should include in their policies how an applicant may complain or appeal about a decision they are unhappy with. The Council’s policy states that parents have a right of appeal against a decision to refuse subsidised transport or if they consider the travel arrangements are unsuitable on particular defined grounds including “exceptional circumstances”.

What happened

20. Mr G applied for home to school transport for his 17 year old son, X, to attend a further education placement in 2019. The Council says it did not receive any supporting information with this application so he did not provide any information about X’s special needs.
21. The Council says it offered Mr G subsidised transport with a requirement that he paid the standard £500 annual contribution to this. It does not have a copy of this decision as it says it does not keep these. The Council confirms that Mr G did not appeal against the decision to refuse transport but did complain that he did not consider he should be required to pay the £500 annual contribution.
22. The copy of its consideration of the complaint confirms that the Council considered it was entitled to provide subsidised transport and not free transport to post 16 students and reminded Mr G that his most recent contribution to the annual £500 fee was outstanding. A local councillor whom Mr G approached about his concerns advised Mr G that he could apply for the bursary if he was unable to meet the £500 charge.
23. The Council says that X does not have an Education, Health and Care Plan though Mr G has said that he does have a diagnosis of an autistic spectrum disorder.
24. In response to my enquiries the Council said the cost to the Council of providing X’s transport was £665 for the year 2019/20. So the total annual cost of X’s transport was £1165. The Council also confirms that the contribution required for all pupils regardless of distance, duration or any particular requirements was £500. The Council says its scheme is heavily subsidised stating that on average it pays £1288 per student on top of the student contribution of £500.
25. The Council confirms the existence of the government’s bursary scheme advising families or students may apply for this if they will struggle to make the contribution to travel costs.

Mr G’s complaint to the Council

26. In January 2020 Mr G was in correspondence with his local council member stating he did not consider he should have to pay for his son to attend post 16 education when he was legally obliged to remain in education or training up to the age of 18.
27. Mr G complained to this office in February 2020 stating the Council was required to pay for X’s transport to school because he was legally required to attend and he lives in a village too far from college to be able to walk to.
28. In March 2020 the Council considered Mr G’s complaint about the charge the Council was making for the transport being provided. In his complaint he said:
• the cost of the fares for his son to take the bus from home to college amounted to £585 a year and he was asked to contribute £500 to this meaning the Council’s contribution was only £85 a year. He said this was unfair because the parental contribution was standard at £500 so other parents whose children were travelling a further distance and for whom the total was higher were also only required to contribute £500;
• it was wrong for the Council to restrict the school which was the nearest suitable (and designated) school for transport purposes as the government’s transport guidance says that children seeking a post 16 educational placement should have the opportunity to choose between a reasonable number; and
• the Council had therefore failed to adhere to government guidance wrongly replacing government requirements with its own policy.
29. In its response a Council officer said that it was complying with the guidance in the transport policy. Subsequently, a Council member emailed Mr G confirming the Council was unable to cover the entire cost of providing transport and this was a result of cuts in the amount of government funding it received. He said he would ask the relevant department to respond to Mr G’s concerns about the relative cost and contribution on different routes/distances.

Was the Council at fault and has this caused injustice?

30. I consider the Council’s Transport Policy fails to accurately reflect the statutory guidance in relation to:
• targeting support to young people who need it most, particularly to those on a low income;
• ensuring that any contribution is affordable as a standard contribution is charged for all transport provided; and
• ensuring that young people have a reasonable opportunity to choose between courses if they are to be eligible for assistance with transport.

This amounts to fault. I do not consider it is sufficient to tell applicants that if they cannot afford to pay the standard contribution they should apply for a bursary. This is because the statutory guidance specifically says that councils should target support to those who need it most, specifically mentioning those on a low income and to ensure that any contribution is affordable.

31. I am unable to definitely say that this fault caused Mr G injustice in terms of his missing out if his income had been properly considered. This is because I do not know what difference may have been made in terms of the affordability of the required contribution had the Council taken account of Mr G’s income and there is no evidence that Mr G provided evidence of his income to the Council and he did not submit an appeal in this respect.
32. I cannot also definitely say that Mr G’s son was caused any injustice by not being given a reasonable opportunity to choose between courses as Mr G has not indicated that he would have preferred to attend or participate in a different course to the one he embarked on.
33. In the absence of clear evidence that Mr G was caused injustice as a result of the Council’s policy I have made no recommendation for a remedy for Mr G.
34. The Council has agreed that it will amend its policy to provide information on how it considers the £500 contribution is affordable for everyone and will also amend its policy to confirm it does consider providing transport in circumstances where there is evidence it would be unreasonable for an applicant to attend their nearest or designated college. It will let us have details of these amendments within one month of the date of this final decision.

Back to top

Final decision

35. There is fault in the Council’s policy but that this did not cause injustice to Mr G. The Council will amend its policy.

Back to top

Investigator's decision on behalf of the Ombudsman